Tuesday, July 31, 2012

Summary 2012 WY 104

Summary of Decision July 31, 2012

Justice Burke delivered the opinion for the Court. Affirmed.

Case Name: JAMES HENRY and BARBARA HENRY, Husband and Wife, v. GEORGE BORUSHKO and LUCILLE BORUSHKO, Husband and Wife

Docket Number: S-12-0028

URL: http://www.courts.state.wy.us/Opinions.aspx

Appeal from the District Court of Fremont County, Honorable Norman E. Young, Judge.

Representing Appellants: Pro Se

Representing Appellees: William L. Miller, Miller & Fasse, P.C., Riverton, Wyoming

Date of Decision: July 31, 2012

Facts: Appellants, James and Barbara Henry, and Appellees, George and Lucille Borushko, own adjoining properties in Fremont County, Wyoming. An irrigation canal separates the properties. In 2009, a dispute developed over the boundary between their properties. The Borushkos asserted that the boundary was the centerline of the irrigation canal. The Henrys claimed that it was at the fence along the north bank of the canal. Litigation ensued. The district court ruled in favor of the Borushkos. The Henrys appealed. Affirmed.

Issues: The issue is whether the deed to the Borushkos’ property should be interpreted to establish the property boundary at the centerline of the canal or along the fence on the north bank of the canal. A secondary issue, raised by the Borushkos, is whether there was reasonable cause for this appeal.

Holdings: The Court concluded that the Henrys’ conveyance of property bordering on the canal must be presumed to carry title to the center of the canal, and the specification of the acreage of the property was not sufficient evidence to defeat that presumption. The Court found no error in the district court’s decision. Having decided to affirm the district court’s ruling, The Court turned to the Borushkos’ contention that they should be awarded reasonable attorneys’ fees because there was no reasonable cause for this appeal. The Court has the authority to award such fees under W.R.A.P. 10.05, but did not do so in this case. The Henrys’ contention that the recitation of acreage in the deed was significant was not without merit. The Court considered carefully before determining that the recitation was insufficient to rebut the presumption that the reference to the canal meant the center of the canal. The Court could not say that the Henrys’ appeal was unreasonable, and declined to award attorneys’ fees. Affirmed.

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court

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